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TMI Blog1985 (3) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... od of three months. 2. Aggrieved by this rejection of the appeal, Kashmira Singh filed revision petition to the Central Government, which has since been received by this Tribunal to be treated and disposed of as an appeal. After it was registered as such and notice of hearing issued, an application was moved by Smt. Surjit Kaur, Smt. Kulbir Kaur and Smt. Inderbir Kaur, stating to be the wife and daughters, respectively, of Kashmira Singh, to be substituted as appellants as Shri Kashmira Singh had since died. This application was allowed by order dated 1-6-1984 after notice to the respondent. According to this application, Kashmira Singh, stated to be resident of 84, Kenedy Avenue, Amritsar, had expired on 25-10-1983, which fact was evidenced by copy of the death certificate. The appeal has, thus, been heard finally, with the widow and daughters of Kashmira Singh (deceased) having been substituted as appellants, and who put in appearance through Shri Herjinder Singh, Advocate. 3. The rejection of Shri Kashmira Singh s appeal, against the Collector s order, by the Board, as already stated, was on the ground of being time-barred. It is pleaded in the revision petition, now appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activity Act, 1974 (COFEPOSA for short), and remained so from 10-8-1976 to 9-8-1977, and that, it was only on 10-8-1977 that he was released from jail. He asserted that, at no stage, show cause notice was ever tendered to him nor had he ever refused to accept the same and, at no stage, he came to know of the proceedings against him, much less of adjudication order, nor was any copy of the same served on him, nor conveyed to him, and that, it was only when he went to the Office of the Collectorate at Chandigarh in connection with hearing of some other matter which was on 30-5-1980, that he came to know of this order and, immediately, he took steps to file an appeal to the Board, which he did on 12-6-1980. 6. We have taken great pains to ascertain the truth of these pleas made by Shri Kashmira Singh, and the effect thereof on the proceedings. We find that it is not denied that Kashmira Singh was in custody, under COFEPOSA, during the period proceedings, by was of show cause notice, were being taken up. The papers filed on behalf of the respondent reveal that on 25-12-1976, a registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request to the authorities that adjudication order be served on him on a different address when, in the first instance, he was not aware of the adjudication proceedings and, secondly, he had never given Malluwal village address to be his address and it is apparent that, all through, the Customs authorities proceeded on assumption that since Gurmej Singh-an uncle of Kashmira Singh-had given his address as of Village Malluwal, Kashmira Singh could also be taken to be resident of the said village. That presumption has been repudiated because it is apparent on record that Customs authorities had full knowledge that Kashmira Singh was in custody in jail when the show cause notice was being issued, and they had further knowledge that his current residence was Amritsar, which fact is apparent from the endorsement on the registered post which was received back by the Customs authorities (page 20 of the Respondents Book) undelivered with the endorsement, dated 26-3-1979, that the addressee Kashmira Singh was since residing in Amritsar and that he has left residence of Village Malluwal. It is also mentioned in the Collector s report bearing the date 9-11-1984, which the Departmental Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring. From the fact that he had immediately rushed to file an appeal-and there is no reason why he should not have filed the appeal earlier, we are satisfied that the Board had gone wrong in treating the appeal as barred by time. The order, on the other hand, is based on erroneous assumption. This appeal has to succeed so far as Board s order, dismissing Kashmira Singh s appeal as time-barred, is concerned. 11. However, in view of the peculiar circumstances of the case that Kashmira Singh is now dead, and there was, at no stage, service of show cause notice on him, and the entire adjudication proceedings were ex parte, we have given our earnest thought to the matter and come to the conclusion that the entire proceedings have to be quashed as there is nothing on record to go back to. The proceedings can, obviously, be not remitted to the Board now for decision on merits, because the Board no longer exercises appellate powers. The adjudication proceedings, in the absence of show cause notice, are not sustainable. We have already highlighted the facts which lead to the inference that Kashmira Singh s plea, that he was not served with the show cause notice at any stage, is quite cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf. This endorses the appellant s contention that this registered cover could not have been directly presented to him and it had to be through Superintendent, with the necessary implication that his reported refusal ought to have borne endorsement of the Superintendent by way of certification. We are inclined to accept this contention because reading the Conditions of Detention and provisions of Maintenance of Internal Security Act (also placed on record), the scheme of things appears to be that no detenu could be directly approached in the matter of delivery of post, etc. The report of alleged refusal, contained on this registered cover, and on the basis of which the adjudication proceedings against Kashmira Singh were conducted ex parte, suffers from lack of requisite satisfaction of necessary conditions, under Section 27 of the General Clauses Act, an inference of service can be drawn only if the registered post is properly addressed . 15. On the given facts, we do not think that presumption of service of show cause notice, so as to justify recourse to Section 153(b) of the Customs Act, could be raised. It could have been a case for remand for proceeding de novo from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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